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OHIO ELECTRIC ENERGY SALES AGREEMENT
VARIABLE PRICE
This Ohio Energy Sales Agreement (the “Agreement”) is entered into effective as of the [Day] day of [Month] 20[Year] (the “Effective Date”) by and between GDF SUEZ Energy Resources NA, Inc. (“Suez”), a Delaware corporation and [Customer Name] (“Customer”). Suez and Customer are also referred to herein individually as a “Party” and collectively as the “Parties.” Unless provided to the contrary, capitalized terms are defined in Section 3.
SECTION 1. TRANSACTION TERMS AND CONDITIONS
1.1 Purchase and Sale. Subject to the terms and conditions set forth herein, Suez shall sell and deliver and Customer shall purchase and receive Firm Full Requirements Service for the facility(ies) identified in Attachment A, Exhibit 1 for the term set forth below.
1.2 Term. This Agreement shall be effective on the Effective Date and the service contemplated herein shall commence at the Contract Price on the first available Utility Transfer Date on or immediately following the Start Date as specified for each facility in Attachment A, Exhibit 1. Service shall remain in effect at the Contract Price through the first available Utility Transfer Date immediately following the End Date as specified for each facility in Attachment A, Exhibit 1. Notwithstanding the foregoing, Customer’s options for service beyond the Utility Transfer Date following the End Date include: i) executing an agreement with Suez for new terms and conditions of service, ii) transferring to another competitive supplier, or iii) providing a written request to Suez to transfer Customer’s account(s) to the applicable default service provider. In the event Customer does not exercise one of the options above prior to the End Date, Suez may continue providing service on a month-to-month basis (“Post Term Service”). You will receive a notice within 45 – 90 days stating whether Suez will renew this Agreement on a month-to-month basis or terminate the Agreement. If Suez elects to renew the Agreement your affirmative consent will not be required. Where the local billing utility uses a “rate ready” billing system, the Contract Price for Post Term Service shall be a monthly variable rate set by Suez that is based on the cost of electricity supply plus costs and margin. Where the local billing utility does not use a rate ready billing system, the Contract Price for Post Term Service shall be an amount equal to the applicable real time index price as posted by the ISO for the relevant delivery point, plus a per kWh Post-Term Charge as defined herein, plus any applicable non-utility charges, including but not limited to Ancillary Services, installed (or unforced) capacity, losses, and all other ISO charges or administrative fees incurred in connection with delivery of energy to the delivery point specified in Attachment A, Exhibit 1. Taxes and Utility Related Charges are additional and not included and are separately listed in the Customer invoice. Customer may terminate Post Term Service without liability for any early terminate fees by providing at least 30 days’ notice.
1.3 Billing and Payment. For each Billing Cycle, Suez will deliver to Customer an invoice setting forth the charges due for the preceding Billing Cycle. Such invoice shall include the monthly charges for energy consumption and any other charges or fees imposed pursuant to the terms of the Agreement Taxes and Utility Related Charges are not included in the Contract Price and will be collected by the applicable local utility. Suez may, however, use estimated data for billing purposes hereunder provided that such estimates will be subject to future reconciliation upon receipt of final data regarding the actual quantity of energy consumed for the applicable Billing Cycle. Payment of the invoice amount shall be due to Suez by check, electronic funds transfer (EFT) or any other mutually agreed upon payment method within twenty one (21) days after the date of the invoice. Overdue payments will accrue interest at the Interest Rate from the due date to the date of payment, and Suez retains the right to report payment history to various credit agencies. If any amount of an invoice is disputed in good faith, the entire invoice shall be paid when due. Any disputed amounts that are ultimately determined to be owed to Customer shall be refunded by Suez with interest accrued at the Interest Rate from the date payment was made through the date of refund to Customer. Any dispute with respect to an invoice is waived unless the other Party is notified within twenty-four months after the invoice is rendered or any specific adjustment to the invoice is made. Customer’s failure to pay the Utility Related Charges in accordance with this Section 1.3 may result in Customer’s account(s) being disconnected in accordance with the applicable local electric utility tariff. Suez shall be authorized to recover reasonable attorney’s fees incurred in the successful pursuit of collection of unpaid amounts due from Customer. Suez may sell its receivables to the billing utility pursuant to its purchase of receivables (“POR”) program, in which case the terms and conditions of the POR program shall control. When available, Suez will use consolidated billing (i.e. a single bill containing both Suez and Utility Related Charges).
1.4 Contract Price. In addition to applicable Taxes and Utility Related Charges that are not included in the Contract Price and are collected by the applicable local utility, Customer shall pay Suez the Contract Price per kwh of electric energy consumed in a Billing Cycle. The Contract Price may include, if applicable, an Intermediary Fee, and is inclusive of all non-utility charges including energy, ancillary services, installed (or unforced) capacity, congestion, losses, and other PJM charges or administrative fees incurred in connection with delivery of energy to the delivery point specified in Attachment A, Exhibit 1. Suez will not adjust the Contract Price if the local utility or ISO adjusts Customer’s capacity peak load contribution.
1.5 Other Transmission-Related Charges. The following charges are billed to Customer by the local electric utility company, and are not included in the Contract Price or in any other Suez charge: Network Integrated Transmission Service, Transmission Enhancement, and other transmission-related ancillary services.
1.6 RMR Charges. Your Contract Price does not include Real-time Reliability Must Run (RMR) charges. RMR Charges are directly billed to the Customer by the local utility.
SECTION 2. GENERAL TERMS AND CONDITIONS
2.1 Notices. Notices, correspondence, and address changes shall be in writing and delivered by regular or electronic mail, facsimile, or similar means or in person Notice by facsimile, electronic mail or hand delivery shall be deemed to have been received on the date transmitted or delivered (after business hours deemed received on next Business Day) and notice by overnight mail or courier are deemed received two Business Days after it was sent.
2.2 Taxes. “Taxes” shall mean any and all taxes and fees imposed on the purchase and sale of electric energy by any Governmental Authority. Customer will be responsible for and indemnify Suez for all Taxes hereunder, whether imposed on Customer or Suez. Suez may collect such Taxes from Customer by increasing Suez charges for the amount of such Taxes.
2.3 Title, Risk of Loss. Title, liability and risk of loss associated with the electric energy purchased and sold hereunder shall pass from Suez to Customer at the delivery point specified in Attachment A, Exhibit 1.
2.4 Credit Assurances. If Suez has commercially reasonable grounds to believe Customer’s creditworthiness or performance under this Agreement may become unsatisfactory, then Suez may provide Customer with written notice requesting a deposit in an amount not to exceed three (3) times the average amount invoiced by Billing Cycle. Upon receipt of such notice, Customer shall have five (5) days to remedy the situation by providing such deposit to Suez. The deposit shall be in the form of a cash or a letter or credit . In the event that Customer provides a deposit in the form of a letter of credit it shall be in a form approved by Suez and shall have a term that expires no less than ninety (90) days beyond the End Date of this Agreement. If such deposit is in the form of cash, any remaining balance shall be returned to Customer after all payment obligations have been fulfilled. No interest will be paid on deposits.
2.5 Force Majeure. “Force Majeure” shall mean an event that is beyond the reasonable control of the Party claiming an event of Force Majeure that could not have been prevented by the exercise of due diligence. If either Party is rendered unable by Force Majeure to carry out, in whole or part, its obligations under this Agreement, such Party shall give notice and provide full details of the event to the other Party in writing as soon as practicable after the occurrence of the event. During such Force Majeure period, the obligations of the Parties (other than the obligation to make payments then due or becoming due with respect to performance prior to the event) will be suspended to the extent required. The Party claiming Force Majeure will make all reasonable attempts to remedy the effects of the Force Majeure and continue performance under this Agreement with all reasonable dispatch; provided, however, that no provision of this Agreement shall be interpreted to require Suez to deliver, or Customer to receive, electric energy at points other than the delivery point(s). Force Majeure shall not include (a) Customer’s decision to shut down, sell or relocate its facilities or (b) economic loss due to Customer’s loss of markets or suppliers.
2.6 Events of Default. It shall be an “Event of Default” if Customer fails to make any payment required by this Agreement and such failure is not cured within fourteen (14) days of receiving written notice from Suez.
2.7 Remedies Upon an Event of Default. If an Event of Default occurs, the Suez shall have the right (i) to liquidate and terminate any and all agreements hereunder and/or (ii) suspend performance. If Suez elects to terminate and liquidate, it shall calculate the aggregate amount of losses or gains it incurs in accordance with the following formula: Termination Payment = (Contract Price – Current Market Price) x (the amount of electricity remaining to be delivered under the terminated agreements according to Suez’s consumption forecast). The Suez shall provide a written explanation of its calculation of the Termination Payment to Customer, and the Termination Payment shall be due within five (5) Business Days thereafter. It will not be an Event of Default and no Termination Payment will be due if Customer discontinues service at a facility prior to the End Date because Customer has moved, sold, or closed the facility, provided that Customer provides thirty (30) days’ notice, a forwarding address, and other evidence required by Suez that Customer no longer occupies the facility.
2.8 Limitation of Liability. THE PARTIES AGREE THAT ACTUAL DAMAGES WOULD BE DIFFICULT TO DETERMINE IN THE EVENT OF ANY EARLY TERMINATION AND THEREFORE AGREE THAT THE CALCULATION OF A TERMINATION PAYMENT AS SET FOR THE HEREIN CONSTITUTES A REASONABLE APPROXIMATION OF THE HARM OR LOSS AS A MUTUALLY AGREED UPON FORM OF LIQUIDATED DAMAGES. FOR ANY OTHER BREACH OF THIS AGREEMENT, LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY AND ALL CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES IN TORT, CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE, ARE WAIVED BY BOTH PARTIES.
2.9 Indemnification. Except as limited by Section 2.8, each Party shall indemnify, defend and hold the other Party harmless from claims, demands and causes of action asserted against the indemnitee by any person arising from or out of any event, circumstance, act or incident first occurring or existing during the period when control and title to electric energy is vested in such Party as provided in Section 2.3.
2.10 Representations and Warranties. As a material inducement to entering into this Agreement, each Party, with respect to itself, represents and warrants to the other Party as of the Effective Date of the Agreement as follows: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform this Agreement; (b) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action and do not violate any of the terms or conditions in its governing documents or any contract to which it is a party or any law, rule, regulation, order, writ, judgment, decree or other legal or regulatory determination applicable to it; (c) this Agreement and each other document executed and delivered in accordance with this Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms, subject to any equitable defenses; (d) it is not Bankrupt or Insolvent and there are no reorganization, receivership or other arrangement proceedings pending or being contemplated by it, or to its knowledge threatened against it; and (e) it has read this Agreement and fully
understands its rights and obligations under this Agreement, and has had an opportunity to consult with an attorney of its own choosing to explain the terms of this Agreement and the consequences of signing it. Customer further represents and warrants to Suez throughout the term of this Agreement that no facility or account listed on the Attachment will be classified by the applicable utility as a residential account. With the exception of any warranty that is expressly set forth in this Agreement, Suez and its successors, assigns and delegatees make NO WARRANTY OFANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Suez acts solely as counter-party in all transactions with Customer under this Agreement. Accordingly, Suez has no duty to advise Customer or exercise judgment on Customer’s behalf as to the merits or suitability of any transactions that Suez proposes to enter into with Customer.